TGIF: Libertarianism Without the Magic

I had the pleasure of appearing before the Amherst Political Union (Amherst College) this week to discuss the election of Donald Trump as president and the future of liberty. What perhaps pleased me even more was meeting with a group of young libertarians eager to explore the nature and implications of natural-law free-market anarchism. The students were prepared with many questions about how various hypothetical situations would be addressed in a stateless society. In other words, the students really made me work for my honorarium. It was invigorating, not to mention encouraging.

Underlying many of the questions was the search for assurance that libertarian anarchism would produce not only security but justice. This is an entirely appropriate line of inquiry. Even the most devoutly deontological libertarian is not unconcerned with consequences (just as the most devoutly consequentialist, or utilitarian, libertarian is not unconcerned with justice). If libertarians devoted to the moral goodness of freedom thought their ideal society would lead to vast injustice or, say, poverty, I expect they would be less enthusiastic about their philosophy.

The problem with many hypothetical questions about an anarchist legal system is that they never provide enough information. Such matters cannot be resolved a priori, simply by applying basic moral principles. Too much depends on the evolved customary law of the particular society. But this is true of any alternative system. Questions can be answered broadly, but often not precisely. That’s just the way it is.

It must also be pointed out that no guarantees of perfect justice can be given. Perfection is not on the menu. But again, this is true of any alternative. As I like to put it, in accord with the title of a 1970s hit record, “I beg your pardon, I never promised you a rose garden.” The question is not how anarchism can achieve perfect justice, but how anarchism compares to the alternatives in producing justice.

In recent years scholars across a range of disciplines, including history, have produced a large and persuasive literature showing that anarchism compares quite favorably indeed.

One important point is sadly unappreciated: many of the alleged problems with anarchism are equally problems for minarchism (limited government). Minarchists often say that a fatal flaw in anarchism is its lack of a final arbiter with legitimate authority to define and enforce the law; therefore, it is said, anarchy rests on nothing but the shaky foundation of social consensus, custom, ideology, cooperation, etc.

The minarchist critique of anarchism is blindered in the sense that minarchists don’t know enough about their own preferred system to see that their objections to anarchy also apply to minarchy. Roderick Long has pointed this out on several occasions. When a minarchist demands to know how justice will be consistently assured in a stateless society, the anarchist can throw the question right back: how can the minarchist assure that justice will be done consistently by a limited state? The usual answer will contain words such as constitution, objective law, rule of law, court of final jurisdiction, checks and balances, and the like. But those are just words, and as any libertarian should readily acknowledge, their record in producing justice leaves much to be desired. Moreover, and contrary to common misconception, a market anarchist society would have the equivalent of those things –except they would be more robust thanks to radical decentralization and competition. (See Long’s “Why Objective Law Requires Anarchy.”)

As Roderick Long points out in “Market Anarchism as Constitutionalism” (a chapter in Anarchism/Minarchism: Is Government Part of a Free Society?, edited by him and Tibor Machan), libertarians are properly unsatisfied when progressives assert that the welfare state will eliminate poverty or conservatives assert that the national security state will keep us safe. Libertarians properly demand to know the process details that would make those outcomes likely — what incentives would prompt the individuals who constitute the state to produce the promised results. Merely positing an abstract institution tells us nothing. (How’s that U.S. Constitution and Bill of Rights working out for you?) Long likens this to painting a “magical picture.”

But the minarchist also paints a magical picture. Somehow it is enough to posit a government theoretically bound by a constitution and the rule of law and — voila! — you have justice (as though the Public Choice theorists, Anthony de Jasay, and others haven’t provided ample reason to doubt that limited government would remain limited regardless of its formal constitution).

Not so fast. Long writes:

“One might go so far as to say that rejecting this magical picture of the state just is one of the defining features distinguishing libertarianism from its ideological rivals. But minarchist libertarians, I suggest, have not disentangled themselves from the magical picture so thoroughly as anarchist libertarians have. Instead, they often write (when discussing anarchism, though seldom when discussing any other topic) as though a government’s decreeing some desired result is equivalent to its achieving it — and then contrast this idealized picture of government with the muddling reality of anarchy, to the latter’s detriment.

“This magical picture of government appears to underlie the minarchist’s demand to know what guarantees that private entrepreneurs under market anarchism will not behave in tyrannical and abusive ways. The answer, of course, is that nothing ‘guarantees’ it, just as nothing ‘guarantees’ that governmental politicians will not behave likewise. But once we leave aside the magical approach for a comparative-institutions approach, we can ask a more useful question: under which system is such behavior most likely to be restrained? The superiority of anarchy over government here lies in the fact that under government the tie between the decision to commit aggression and the cost of that aggression is far weaker than under market anarchism.” (Emphasis added. See the chapter for details.)

Thus anarchism and minarchism are on a level playing field when it comes to justification on practical grounds. The anarchist has no burden of proof that is not also on the minarchist’s shoulders.

Sheldon Richman is the executive editor of The Libertarian Institute, senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at Antiwar.com. He is the former senior editor at the Cato Institute and Institute for Humane Studies, former editor of The Freeman, published by the Foundation for Economic Education, and former vice president at the Future of Freedom Foundation. His latest book is America’s Counter-Revolution: The Constitution Revisited.